Franco-Buitrago, Ex parte - Re Ruddock

[2000] HCATrans 177

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S34 of 2000

In the matter of -

An application for Writs of Mandamus and Prohibition and Certiorari against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

First Respondent

MS SUSAN McILLHATTON, sitting as the REFUGEE REVIEW TRIBUNAL

Second Respondent

PETER NYGH in the capacity as Principal Member of the REFUGEE REVIEW TRIBUNAL

Third Respondent

Ex parte -

LUIS FERNANDO FRANCO‑BUITRAGO

Prosecutor/Applicant

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 26 APRIL 2000, AT 10.41 AM

Copyright in the High Court of Australia

_______________________

MR P.M. GWOZDECKY:   Your Honour, I appear on behalf of the prosecutor.  (instructed by the prosecutor/applicant)

MR S.B. LLOYD:   I appear for the Minister or, if leave be required, then I seek leave to appear for the Minister.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Gwozdecky.

MR GWOZDECKY:   Your Honour, first of all I would seek leave to file in Court an amended draft order nisi.

HIS HONOUR:   Yes.

MR GWOZDECKY:   My friend has a copy of that, together with a list of authorities and a chronology as an aid memoir.  Your Honour, I would also seek to read two affidavits in support of the amended ‑ ‑ ‑

HIS HONOUR:   Just let me have a look at this first.

MR GWOZDECKY:   Thank you.

HIS HONOUR:   Have you seen this, Mr Lloyd?

MR LLOYD:   I received a copy of the amended draft order nisi this morning.

HIS HONOUR:   Yes.  It seems to be fairly similar to the document that was filed last week.  I do not know whether it was filed or not, but it is certainly with all the papers.  Have you any objections to it?

MR LLOYD:   Last week we were provided with a copy of a document called a proposed amended draft order nisi.  Is that the document you refer to?

HIS HONOUR:   That is the one I am referring to, yes.  Is it quite the same document?

MR LLOYD:   It contains only one particular as opposed to the new document which contains a great many particulars.  In so far as the issue is the one particular which I think - my friend will no doubt address this - I think the central issue is this issue, no objection is taken.  In relation to the other matters, they do come on at short notice.  Subject to that ‑ ‑ ‑

HIS HONOUR:   Yes.  I will grant you leave to file this document.

MR GWOZDECKY:   Thank you, your Honour.  If I can also hand up to your Honour some submissions in respect of the matter that have been prepared. 

HIS HONOUR:   Yes.

MR GWOZDECKY:   Your Honour, I would seek to read the two affidavits in support of the order nisi.

HIS HONOUR:   Are these the affidavits that were filed last week?

MR GWOZDECKY:   Filed last week, yes.

HIS HONOUR:   I have read those.  They can be taken as read.  Were they actually filed last week?

MR GWOZDECKY:   No, they were just served and ‑ ‑ ‑

MR LLOYD:   Perhaps I should note an objection to them.  There are two objections, one substantive and one formal.  The substantive one is that the affidavit entitled "Affidavit in Support of Amended Draft Order Nisi", from paragraph 7 onwards there is material that was not before the ‑ ‑ ‑

HIS HONOUR:   I appreciate that.

MR LLOYD:   So objection is taken to that. The other point, again, I simply note the objection, is that there is no indication - there is indication in the affidavit that the person swearing the affidavit does not speak English yet there is no evidence to suggest that this was ever translated back to him or interpreted to him.

HIS HONOUR:   No.  Yes, Mr Gwozdecky.  Let me put to you - I have quickly read your submissions, I have read the papers.  It seems to me that most of the matters that you raise have been mistakes of fact within jurisdiction and that they would not be a case for the grant of an order nisi.  But there does seem to be one point which is perhaps of significance and that is the question concerning the reasonableness of relocation.  But let me put to you what I see as your problem.  If the evidence before the Tribunal had suggested that the proper treatment was available in areas in Colombia where the guerrillas had control or there was danger to the applicant from guerrillas, but that there was not guerrilla activity or danger in an area where the applicant could safely relocate, then some important question may have arisen.  But there does not seem to be any evidence to that effect.  Your case seems to be no more than that there is a low quality of medical treatment in Colombia generally.  So what has that got to do with any issue under the Act?  I mean, on your view – on the evidence and on the way that your case is formulated, it would not make the slightest difference whether or not there were guerrillas anywhere.  If there were no guerrillas at all, you would still make the same objection.  It just does not seem to me to have any causal connection with any issue under the Refugee Act.

MR GWOZDECKY:   Your Honour, I will try to answer it in this way.  The issue of the reasonableness of relocation went to the heart of the determination.

HIS HONOUR:   I understand it went to the heart of it, but the point is that it would be different if, for instance, proper treatment was available in Periera but not in other places where he could safely relocate.  Then it seems to me that there would be a very important question in the proceedings as to whether that was an error of law on the part of the Tribunal, not to consider it, and as to whether it went to jurisdiction.  But that is not the case.  Your case was before the Tribunal, and seems to be still now, that there just is not proper treatment in Colombia.  How is that a refugee ‑ ‑ ‑

MR GWOZDECKY:   Your Honour, I think there are really two points.  One point is the treatment – there is a risk of returning to Colombia per se because of the treatment there, that is one thing.  But the other issue is it is implicit that if he is returned, there still is an issue about where the child and the family should be relocated because, obviously, the condition was diagnosed in Colombia and there are certain major hospitals in the major cities that can do that and treatment, good or bad, it can at least be diagnosed and treated there.  But it was essential, we say, implicit that the Tribunal, when determining the issue of reasonableness of relocation in the future, had to consider, well, listen, we have got new information on our hands now.  Before, these so-called successful relocations in the past, which were for a week here and there, there is new evidence which is relevant to the issue of future relocation because of the child’s medical condition.  Now, the Tribunal made a general assertion, “We think it is reasonable for them to relocate in” ‑ ‑ ‑

HIS HONOUR:   I appreciate that, but that is not the Tribunal’s fault.  There is just nothing put before the Tribunal at all to raise any issues.

MR GWOZDECKY:   But, your Honour, we are saying that the medical evidence and the assertions that were put before the Tribunal were something that implicitly led to – that they should have said, listen, we now have evidence before us that there is this bleeding disorder that can occur at any time in a four‑year‑old and, obviously, you know, we are not going to relocate – he cannot relocate to what we said was successful before, El Rocio, which is a rural area, because in case there is a spontaneous bleed for some reason, there are no facilities in a rural area to deal with this.

HIS HONOUR:   How do we know that?  How did the Tribunal know that?  There was no issue raised before the Tribunal.

MR GWOZDECKY:   Your Honour, and I must say it was not raised by the applicants because they were not aware of that, but it is implicit in the evidence before them, by saying that this information is not relevant to refugee status, which is ‑ ‑ ‑

HIS HONOUR:   It was not, as it stood.

MR GWOZDECKY:   Your Honour, we say it was related – the child’s medical condition was related to the reasonableness of the parent’s relocation, as well as to the child’s.

HIS HONOUR:   How could that be?  I mean, the general thrust, both of the letter that was written to the RRT and even the evidence that is given in paragraphs 7 to 14 of the affidavit which you now rely on, together with the annexures, suggests no more than that there is some pretty poor treatment for this condition in Colombia and that it was not properly diagnosed – it was not properly treated in Colombia.  Where is the evidence that if he returned to a guerrilla‑controlled area he could be properly treated, but if he went to some other area where he would be safe, his child could not be so properly treated?

MR GWOZDECKY:   I suppose that would have been the reasonable question to ask.  It did not get that far.

HIS HONOUR:   Yes, but the reason it did not get that far is because there was never any issue.  Tribunals do not make jurisdictional errors if there is nothing before them about their jurisdiction.  It is an inquisitorial jurisdiction.  You have got clients who can put his case, but they do not have to go and find issues for him unless there is something that puts them on notice.

MR GWOZDECKY:   We would say that the information – the letters did put the Tribunal on notice.

HIS HONOUR:   What the letter says, the letter that was written on 13 April 1999, “My son is suffering from a rare illness and was never treated by the Colombian doctors in any effective way.  The doctor thinks that if my son’s treatment is changed or discontinued as a consequence of us leaving Australia, that could put his health at risk.”  But you have to relate it to the refugee problem and his fear of persecution.  If you cannot relate it to the fear of persecution, then it is just a non-issue. 

MR GWOZDECKY:   Your Honour, I think, as I read the decision, the Tribunal member went through those steps and seemed to be satisfied that the applicant had a well‑grounded fear of persecution.  If your Honour – it is at page 13 point 4 of the reasons – of the annexure ‑ ‑ ‑

HIS HONOUR:   Yes, I have it.

MR GWOZDECKY:   About half way down that third paragraph:

In my view it is entirely possible that the agents of harm have no further interest in the applicants.  However, for present purposes I accept that there is more than a remote possibility that the agents of harm could continue to hold an interest in the applicants.  I am also willing to accept, for present purposes, that the threats they have experienced and fear in the future is harm which might be capable of amounting to persecution.  However on the applicants’ own evidence they have successfully re‑located elsewhere in Colombia and had no further difficulties.

So the Tribunal member has gone through the steps that he is required to establish a well‑grounded fear.  He has established that.  When he is asked the next question is where the whole case turns on, yes, they have successfully relocated in the past, they can do so in the future.  That is what it turns on.

HIS HONOUR:   Yes.

MR GWOZDECKY:   So the issue of well‑founded fear of persecution was something that the Tribunal member accepted for the purposes of this decision.  The Tribunal member also accepted that – I mean, there are no adverse findings as to the applicant/prosecutor’s credibility.  If you go through the ‑ ‑ ‑

HIS HONOUR:   Yes, I appreciate that, and the issue then was, was it reasonable for him to relocate elsewhere, and the Tribunal came to the fact that it was, that there were plenty of other places.  Now, your only answer to that is to say that the Tribunal should have considered whether or not it was reasonable, having regard to his son’s state of health, for him to relocate from Periera to some other place in Colombia.  But that said, where is any indication before the Tribunal that it was not reasonable?

MR GWOZDECKY:   Your Honour, when I read through the decision, the Tribunal member said that after this shooting incident, the applicant relocated to a town called Manizales.  He was there for three weeks.  He then relocated for one week to another place.  He then relocated to this rural area called El Rocio for about 4½ months before he came to Australia.  That is the evidence that the Tribunal is then using to establish, well, look he has successfully relocated in the past, he can do so in the future.  But what the Tribunal failed we say to consider, and they had an obligation to, because that material was put before them, was that, first of all, the past successful relocations could not be considered relocations in light of this new material because a rare bleeding disorder, you know, on the medical evidence that was available it is implicit that the fact that a child can spontaneously bleed internally or externally and not clot, it is implicit that at least to consider relocating back to the rural area that they said was successful before.  They did not do that.  They did not apply their mind to the reasonableness of future relocation in the light of this evidence.  They did not question it, they did not ‑ ‑ ‑

HIS HONOUR:   But the material that was put before them had nothing to do with relocation.  The material that was before the Tribunal was directed to showing that Colombian doctors had not treated this condition in any effective way.

MR GWOZDECKY:   The other material, your Honour, that we said was before the Tribunal was the nature of the condition.  I mean, the condition itself, a rare bleeding disorder, not too dissimilar from haemophilia, it would put – it was spelled out in the medical reports that were given to the Tribunal.

HIS HONOUR:   You take me to some passage that shows that it was spelt out because I could not see anything.

MR GWOZDECKY:   If I take you to the second exhibit, LFFB2, now that is of the affidavit filed today in support of the amended application.  It is a medical report.

HIS HONOUR:   Is this the one dated 13 April?

MR GWOZDECKY:   No, your Honour, it is actually not in fact dated.  But it was faxed on 20 April.  This was not in fact before the Tribunal.

HIS HONOUR:   It was not before the Tribunal?

MR GWOZDECKY:   Perhaps, your Honour – it is part of this application but it was not before the Tribunal.

HIS HONOUR:   Yes.  That does not help you.

MR GWOZDECKY:   Yes.  Your Honour, the RRT bundle, pages 44 to 47 really are the documents that relate to the condition.  On page 47 is a report from the Paediatric Haematologist/Oncologist Susan Russell.  She is basically describing the condition.

HIS HONOUR:   Yes.

MR GWOZDECKY:   On page 46 of the bundle, which is another letter, they have confirmed the diagnosis – I mean, there is the actual clinical tests at the beginning of the – last paragraph, “He has been on high doses of Prednisone for quite some time now and if continued could be expected to have significant side effects.  Although he appears to have bruising of a platelet count above 50,000, I think the safest thing to do all round is ween him off Prednisone before it begins to affect his growth.”  Turning over the page, “If Juan were to develop mucosal bleeding he would require urgent platelet count admission to hospital for treatment with intravenous …..globin.” 

HIS HONOUR:   The problem I have with your argument at the moment is that these are arguments about sending him back to Colombia, full stop.  They are not arguments about relocating from Periera to other places. 

MR GWOZDECKY:   Your Honour, we say that there are the two points.  The two issues that had to be dealt with was sending him back to Colombia in the first place, and if sent back, the question of relocation.

HIS HONOUR:   No, that is easily – he cannot rely on the child, the child’s condition, about going back to Colombia, because the only issue there is whether there is a well‑founded fear of persecution.  The argument there is that he does have a well‑founded fear of persecution in so far as going back to Periera, but the question is, if he is sent back to Periera, is it reasonable for him to relocate in some other area.  Now, it is the issue of relocation which you will not address, your argument will not address.  What is there about the issue of relocation that constituted jurisdictional error on the part of the Tribunal?  He can only point to the factors that say the child should not have gone back to Colombia in the first place.  There is not a scintilla of evidence before the Tribunal, or as far as I can see before me, to suggest that he would get worse treatment in a safe area than he would in a good area.

MR GWOZDECKY:   Your Honour, that is true.  I suppose the fact is that the question was not even asked.  It was, we would say, unquestionably a very relevant factor to the determination considering that the Tribunal had found, up to that stage, a well‑founded fear of persecution.

HIS HONOUR:   But you have to give some trigger to the Tribunal.  The Tribunal just does not sit there like some omniscient being seeing whether or not there are facts in the outside world which, if brought to its attention, might create jurisdictional error.  I mean, you have to raise it in some way.

MR GWOZDECKY:   Your Honour, I guess the point is, putting this material before the Tribunal, we say, it was certainly implicit that when deciding the issue on reasonableness of relocation, they had to apply their minds to the information that had been submitted, not just to the fact, oh, he had successfully relocated before.  That is in response to the issue of relocation with inside Colombia, not to coming from Australia back to Colombia.  The fact that this material was put before them, and they decided on – we say that they erred in both respects, in coming back to Australia because certainly with a four-year-old child, your Honour, the applicant had to be – they had to be considered as a family unit, not as individual segments.  It was, we would say, wrong for the Tribunal to say, listen, applicant, you can go back, but we accept your child’s illness and he should stay here, but you can go back okay.  You cannot separate a family unit.  They are applicants being considered together.  So where the child goes, the parents have to go.  He was of that age as well.  They did not consider that.  They did not apply their minds to that question and they did not apply their minds to the fact that, outside of a general assertion, you know, we think it would be reasonable, but they did not investigate, they did not say, oh look, there are two areas where there are hospitals where this child could go and be safe and get treatment.  They did not get that far.  They just ‑ ‑ ‑

HIS HONOUR:   I follow.

MR GWOZDECKY:   And because that was so relevant to the ultimate issue ‑ ‑ ‑

HIS HONOUR:   I understand your argument.  Is there anything further that you want to put?

MR GWOZDECKY:   Your Honour, there were some – I suppose that sort of followed through to their finding at the end of their decision, the last paragraph of page 14 of the reasons, the second sentence, last paragraph:

There is no basis on which the Tribunal can be satisfied that he is a refugee.

That is referring to the child itself.  Now, so the Tribunal determined the reasonableness of individual segments of the family unit and did not – of the individual applicants, but did not consider them really as a family unit, which we say was very relevant to their determination because, as I say, you cannot move one without the other. 

Your Honour, in terms of the ultimate test, the Tribunal seemed to have made an error in applying the test for a refugee, particularly in respect of – if your Honour goes to page 14 of the reasons, the last two sentences of the first paragraph at the top of the page:

I find that it is reasonable to expect the applicants to live elsewhere in Colombia and avoid the harm they fear.  Accordingly, I find that the applicants do not have a well‑founded fear of persecution.

The Tribunal there seems to have misconstrued what they were supposed to do.  The reasonableness of relocation is a test that is applied after they found a well‑founded fear of persecution.  It cannot be otherwise.  They seem to have said there that, you know, it is reasonable for them to relocate and then, in the last sentence:

I find that the applicants do not have a well‑founded fear of persecution.

HIS HONOUR:   Yes, well, that is right, because it is all part and parcel of the one thing, is it not?

MR GWOZDECKY:   Your Honour, we would say that ‑ ‑ ‑

HIS HONOUR:   The question of whether you have a well‑founded fear of persecution involves whether or not you can relocate to some other part of the country where it is safe to do so.  There is no error there.  You will not be getting any relief on that point, as far as I am concerned.

MR GWOZDECKY:   That is really the main points that we rely on.

HIS HONOUR:   Thank you, Mr Gwozdecky.  Yes, Mr Lloyd.  Why should I not grant an order nisi on this point?  I do not think it has the best prospects of succeeding, but the threshold is so low to get an order nisi that ‑ ‑ ‑

MR LLOYD:   Your Honour, perhaps it might be convenient if I hand up submissions.  They were prepared in relation to the proposed amended.  I just draw your Honour’s attention to – the relevant portion is really paragraph 14 onwards.  The first part just summarised the procedural background and the decision of the Tribunal. 

My friend is really, although he has not drawn the Court’s attention to it, seeking an extension of time so that the threshold he needs to meet is the extension of time threshold, rather than the order nisi threshold. 

There are three reasons, in my submission.  My friend says, first of all, that there was evidence that should have triggered the Tribunal to make inquiries.  The Tribunal did make inquiries, as can be seen by the Tribunal’s decision; asked both the husband and wife would there be problems with relocation?  The husband said he would have problems because he has a certain kind of accent and he would be identified in particular places; does not mention his son at all.  The wife has no comment to make about relocation problems.  In my submission, it is not open to the applicant to now say, in relation to a few sentences in a letter provided earlier, that the Tribunal failed to consider that that was a trigger which raised relocation problems for them, when they themselves had the opportunity, they were specifically asked, and they did not identify it as being relevant at the time and it is not for them now to say where the Tribunal has made some error in failing to consider it.

The second point is that the evidence that the claim is was failed to be considered was evidence that if the child’s treatment is changed, that could put his health at risk.  It does not go higher than that.  So that there simply was no evidence that the child’s treatment would even need to be changed.  Short of evidence that the child would be at risk because sending

the person back to Colombia would result in a change of treatment, there simply is no evidence that was before the Tribunal that it could have taken into account.  There are no inferences open to it on that small amount of evidence and it was correct to see it as not relevant.

Thirdly, the Tribunal found, at the bottom of page 13 and over to the top of page 14 of its reasons, that the applicant and his family had found a safe haven in Colombia.  That was before he left.  That being the case, there is implicit in that finding that at the time he left he was not a refugee.  There is no suggestion that anything has happened that has made him a refugee surplus.  The child had the same disease in Colombia as he does here.  There is simply no change that would make him a refugee.  At no stage, on the basis of the Tribunal’s finding, has he been a refugee.  The question of relocation in a sense is irrelevant because he had already successfully relocated within Colombia so he was not a refugee at the time he left or was not even arguably a refugee because the relocation had already been successful.  In my submission, those three grounds are enough to rebut even the arguable case standard of the order nisi and certainly enough to not justify an extension of time, as is required. 

Should the Court not accept that view, as I understand my friend’s documents, at least that I had on Thursday, he is asking for the matter to be remitted.  If the Court were of the view that there was something to it, the first respondent submits that it should be remitted rather than sent to the Full Court.  But I perhaps reiterate that the barriers in my friend’s path are, in my submission, overwhelming.  There is simply no evidence, no trigger, no obligation to inquire further, and even if there was an obligation, the Tribunal did ask “Are there any barriers to relocation?” and the child’s health was never identified as a barrier and the Tribunal cannot be said to have erred by treating the applicant’s case as the applicant presented it.

I do not address my friend’s last point.  In my submission, as the Court has said, that is clearly without foundation. 

HIS HONOUR:   Yes.  What do you say in reply, Mr Gwozdecky?

MR GWOZDECKY:   Your Honour, the issue of delay was addressed in the affidavit that is filed today, the first affidavit.  In respect to that point, formally, your Honour, my friend is right, the prosecutor/applicant requires an extension of time to seek mandamus but the prosecutor/applicant is within time in terms of certiorari.  The reasons in the affidavit sworn on 20 April go, I think, adequately – adequately explain the delay.  The prosecutor was unrepresented, non-English speaking, he made his application within 28 days of the RRT decision on the advice of a migration agent, and with costs being a very relevant issue, to the Minister.  That was on 22 November.  The 26 October was the date of the RRT decision.  On 22 November he made the application to the Minister.  On 17 February he received the Minister’s rejection of his section 417 application which was on humanitarian grounds to grant him refugee status.  I must say in that application to the Minister he did also put the issues about his child’s health, medical condition.

Shortly after receiving the letter on 17 February 2000, he had a friend translate the letter on 26 February.  He then understood that the letter required him to go to the Department and make himself for some reason.  He went on 13 March 2000, was told that he was illegal and was put in detention.  On the 16th he then made an application to this Court and was granted a bridging visa and came out of detention.

Your Honour, ignorance is no excuse for the law, but in the circumstances of this applicant there has been, as I say, no credibility findings against him, he has been doing his utmost with his limited resources to find a solution.  Any delay that could be considered between 26 October and his application to this Court outside of the time of certiorari, we say, should be granted because there are valid reasons.  In fact, with the RRT decision on 26 October and the two months time bar for mandamus, that would have made 26 December, which was during the Christmas period anyway, and I think perhaps for someone especially who is not skilled in the issues of limitation and time bars and non‑English speaking, he could possibly be forgiven for that.

That first affidavit goes to the issue of the extension and explaining the delay in which we are seeking this Court to exercise leave to grant the jurisdiction – to hear the draft order. 

My friend’s first point ‑ ‑ ‑

HIS HONOUR:   I can stop you.  I am going to grant a limited order nisi and remit the proceedings to the Federal Court.  I am not going to give you an order nisi in respect of paragraph (c) or paragraph (d).  I am not going to give you an order nisi in respect of paragraph (a)(iv), that is failed to consider the applicant’s type of work could expose him to persecution.

In this matter I will extend the time for the applicant to commence proceedings for the relief sought by way of mandamus. I will grant an order nisi in respect of the matters referred to in ground (a) other than ground (iv), also ground (b). I will not grant an order nisi in respect of grounds (c) or (d) and I order that the matter be remitted to the Federal Court pursuant to section 44 of the Judiciary Act 1903. I certify this is a proper matter for the attendance of counsel in chambers.

Is there anything further either counsel require?

MR GWOZDECKY:   Your Honour, would it be an appropriate matter for costs.

HIS HONOUR:   No.

MR GWOZDECKY:   No, thank you, your Honour.

MR LLOYD:   Perhaps, your Honour, I should just observe that ground (a) is not a ground upon which the Federal Court has jurisdiction.

HIS HONOUR:   Thank you.

MR LLOYD:   Perhaps the same points are basically in ground (b) anyway.  As I understand my friend’s pleading, might it be opportune just to remit ground (b)?

HIS HONOUR:   Yes, I think that is ‑ ‑ ‑

MR GWOZDECKY:   Your Honour, ground (b) was drafted with a view to capturing Federal Court jurisdiction in case ‑ ‑ ‑

HIS HONOUR:   Ground (a), on its face, is outside jurisdiction, is it not?

MR GWOZDECKY:   Unless your Honour was to give leave just to amend that in Court to saying a breach of, say, section 430, because the considerations that are relevant there would go to 430 which would then grant the Federal Court jurisdiction.  That would be one possible way of ‑ ‑ ‑

HIS HONOUR:   It does not seem to me a relevant matter that they can take into account.  No, I will remit ground (b), and since it seems to me that ground (a) really covers the same matter, I am not going to give you two – given all the discretionary circumstances in the case, I am not going to grant you an order nisi in respect of ground (a) at all.  So an order nisi will be granted in respect of ground (b) only and I will remit that to the Federal Court.

So the order I make is I grant an extension of time to commence proceedings for relief sought by way of mandamus.  I will grant an order nisi in respect of ground (b) only and I will remit that ground to the Federal Court of Australia.  I certify that it was a proper matter for the attendance of counsel in chambers.  The costs of these proceedings can abide the result of the proceedings in the Federal Court.

Anything further?  Very well.  Adjourn the Court.

AT 11.25 AM THE MATTER WAS CONCLUDED